The Secretary to the Department of Defence has forwarded for advice the following memorandum:

I am directed to forward herewith, for favour of opinion on the points set out hereunder, the file of correspondence regarding the case of ex-Lieutenant A.B., A.I.F. This ex-officer was, previous to joining the A.I.F., a N.C.O. of the permanent staff and having been sentenced to dismissal from His Majesty's service, action was taken to terminate his appointment on the military staff. B. claims that this action is unfair and amounts to a double punishment which was not intended by the court.

The Commandant, A.I.F. Headquarters, has recommended that the forfeiture of pay for the period of his being held in arrest should be remitted notwithstanding the provision of section 119 of the Act, and I shall be glad of your advice on this point also.

As regards the termination of Lieutenant B.'s appointment as a staff sergeant-major in the Permanent Forces, it would appear from the minute of the Adjutant-General of 1 October 1917, that this followed as a matter of course on the sentence of the general court-martial. That minute states 'that as this N.C.O. was tried by a general court-martial whilst serving as a member of the A.I.F. and dismissed from His Majesty's service, his appointment on the instructional staff will also terminate from the date of promulgation of sentence'.

It appears also from the file that the court in awarding sentence did not have before it the fact that its sentence of dismissal from His Majesty's service would operate to terminate the ordinary employment of the officer in question. It is, I think, clear that in passing the sentence of dismissal from His Majesty's service, the court had regard only to the service of which for the time being the defendant was a member, namely the Australian Imperial Force, and not to the permanent service of the Commonwealth, nor to any future service.

In my opinion, however, 'dismissal from His Majesty's service' as used in the Army Act means dismissal from His Majesty's military service and such a sentence would, I think, operate as dismissal from any military service whatever for the time being. It would not, of course, prevent re-enlistment.

I am of opinion, therefore, that the sentence of the court operated to determine the appointment of B. on the instructional staff.

The matter of forfeiture of pay for the period of arrest is provided for by section 119 of the Defence Act which provides as follows:

No member of the Defence Force shall, without the authority of the Minister, be entitled to receive any pay or allowances while under any charge of which he is afterwards convicted by any Court . . .

The words 'without the authority of the Minister' were inserted by the Defence Act 1917 which was assented to after the date of the passing of sentence on B., but that fact does not prevent the Minister authorising the payment in question.

If it is, therefore, thought desirable to remit the forfeiture of B.'s pay for the period in question there is nothing to prevent that being done.

[Vol. 15, p. 417]